Two federal courts in New York recently joined the growing list of those finding that Title III of the Americans with Disabilities Act (ADA) does apply to websites. Both courts denied motions to dismiss by businesses that had argued that Title III of the ADA only applied to physical locations of public accommodation. These decisions came shortly after a federal court in Florida—on which we previously reported in June—concluded that the website of grocery store Winn-Dixie was required to comply with the ADA because the goods and services offered on its website had a significant connection to those offered at its physical locations.

The two recent New York cases, which involved retail store Blick Art Materials and burger chain Five Guys, took the Winn-Dixie decision a step further. The courts held that websites must be ADA compliant regardless of whether the online content has a nexus to a physical location.

The court in the Blick case expressly rejected the defense that the defendants could wait for the Department of Justice (DOJ) to promulgate regulations on website compliance standards. Since 2010, the DOJ has issued notices of its intent to promulgate regulations adopting a standard for website compliance under Titles II and III of the ADA. These efforts, however, have consistently been delayed, and the DOJ recently placed the website regulations on its list of "inactive" rulemaking.

The court in the Five Guys case held that Title III entities could rely on the Web Content Accessibility Guidelines 2.0 (WCAG) for guidance. This court also rejected the defense that the restaurant was in the process of improving its website accessibility standards. The court focused its inquiry only on whether, at that moment, the website was ADA accessible—and concluded it was not.

These two cases provide several important takeaways. First, in many jurisdictions, waiting until the DOJ promulgates regulations on Title III website accessibility provides no safe harbor for businesses. This delay, in fact, might be the very reason that courts are showing an increasing willingness to conclude that websites must comply with Title III. Second, compliance with the WCAG 2.0 standards remains the best recommended practice. And lastly, although courts have been split on whether websites must be ADA-compliant, businesses that have a national online presence should be mindful of complying with digital accessibility best practices to minimize exposure to lawsuits like the ones discussed in this alert.

Attorneys in Ballard Spahr's Accessibility Group regularly advise clients on accessibility matters under the ADA. They have experience drafting ADA and digital accessibility policies and procedures; guiding clients through privileged assessments and audits of websites; defending against governmental investigations of accessibility, including digital accessibility matters; and providing training on digital accessibility.

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